Friday, September 26, 2014

Searches incident to arrest from 2009 to 2011 probably violate statute

Gregory D. Bell won in State v. Julian, No. 105,695 (Kan. Sept. 5, 2014), upholding Judge Svaty's suppression order in a Rice County drug prosecution.  The case includes a nice primer on the law of searches incident to arrest.  This case turned on the former statute governing searches incident to arrest, which was repealed in its entirety effective July 1, 2011.  Because the search took place before that date, the statute applied.

The KSC observed that it has held that a 2006 amendment to K.S.A. 22-2501(c), which allowed for searches incident to arrest for evidence of "a" crime was facially unconstitutional after Arizona v. Gant in 2009.  As a result, the only constitutional purposes for a search incident to arrest pursuant to the statute after Gant was for protecting officer safety and preventing escape.  The search in Julian did not fall under those categories:
This was a warrantless search of a vehicle for evidence incident to arrest, conducted at a time when searches incident to arrest were governed in Kansas by statute, and the statute in effect at the time did not authorize searches for the purpose of discovering evidence. The search of Julian's vehicle was therefore illegal.

As a result, the KSC affirmed the suppression order.  The practical impact of this decision appears to be that from the time of the issuance of Gant (April 21, 2009) until the statute's repeal (July 1, 2011), any searches incident to arrest for the purposes of discovering evidence (which is most of them) were illegal and the fruits of those searches should be suppressed.

No comments: